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No. 41 The High Court of Justice in The Hague
Appeals Chamber in matters of Correctional Police
No. 488 of the Record
Johannes Christoffel van Kesteren, professional Book Seller, residing in Amsterdam; appellant of a verdict of the Court of first Instance, sitting in Amsterdam, rendering judgment in cases of Correctional Police, dated 16 August 1820, recorded there on the 25th day of that month by the receiver Bondam, on payment of NLG 67 and 57 Cents, appearing in court with J.G.A. Clant, Master of Law, his procurator litis on the one side,
the Public Prosecutor at the aforesaid Court, defendant, represented by the Procurator General of the High Court of Justice
Samuel Delachaux, bookseller, also residing in Amsterdam, Civil Party and co-defendant, appearing in court with H.A.Bollard LLM, the procurator litis of the other side.
Given the Act of Appeal of 22nd August 1820.
Given the Verdict of First Instance, reading:
"The Court of First Instance, sitting in Amsterdam (Fourth Chamber), rendering judgment in cases of Correctional Police, in the first instance.
Given a claim by Samuel Delachaux, bookseller, residing within this City, at the expense of the defendant Johannes Christoffel van Kesteren, submitted to the Lord Public Prosecutor, and the Civil Party which has joined thereby.
Having heard the statement of the claimant and civil party in this case, to the effect that the
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accused shall be found guilty of the crime of piracy, and that consequently will be ordered that all unsold pirated copies available will be seized, furthermore, this here accused will be ordered to pay compensation of damages amounting to NLG 2700, being the amount of the purchase price for 300 copies, calculated at NLG 9, for which the original French copy and Low German translation is published, both seizure and compensation, for the benefit of the complainant, as well as the cost of the Proceedings; all without prejudice to such a demand as the Lord Public Prosecutor may understand necessary to make in the interest of the State.
Having heard the statement of defence delivered by the defendant, to this effect that the Claim be denied, and the prosecutor and the Civil Party be ordered to pay the costs.
Having heard the subsequently delivered advisory opinion by the Public Prosecution Department, declaring that, according to Art. 7, 9, and 11 of the Decree of 24 January 1814, the Decree of 24 January 1815, and the Act of 25 January 1817, and furthermore under Art. 194 of the Code of Criminal Instruction, the hereby made Claim and statement by the plaintiff and civil party will be adjudicated to them; that Johannes Christoffel van Kesteren will be declared Guilty of the Crime of Piracy, and consequently will be fined as much as, as resulting from aforementioned Articles, this Court may deem appropriate; and ordered to pay the costs of the proceedings.
In view of the Instruction of the aforementioned pleadings.
All the formalities set out by law, so far as still in force, having been observed.
Given Art. 7, 9, and 11 of the Decree of 24 January 1814, and Art. 4 of the Decree of 25 January 1817.
Which Articles have been read by the President.
Considering that it is demonstrated in the Judicial Proceedings that the claimant and Civil Party, Samuel Delachaux, bookseller residing in this City, on 22nd April 1820, to the Lord Mayor of this City, has presented for translation the Copy of a certain work, originally
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written in French under the title of Documens historiques et reflexions sur le Gouvernement de la Hollande, par Louis Bonaparte, ex Roi de Hollande, and has given due notice thereof, as set out in the Act of 24 January 1814, and 24 January 1815, in the Amsterdam Newspapers of 26 and 28 April, and 1 May 1820, as well as the Government Gazette of 26 April and 5 May 1820.
Considering that, although the claimant and Civil Party has not yet fulfilled the third requirement, as set out in the Act of 24 January 1814, the ownership rights of that translation remain reserved to the complainant and Civil Party, in case he fulfils this requirement prior to the expiration of the provided six months, and therefore before 22nd October 1820.
Considering, that it also was demonstrated in the Judicial Proceedings, that the defendant Johannes Christoffel van Kesteren, on 16th May 1820, to the Lord Mayor of this City, has presented for translation a copy of a work published in London under the title of Historical documents and reflexions on the government of Holland, by Louis Bonaparte, ex King of Holland, of which the defendant has given notice in both the Amsterdam and State Newspapers, and additionally has published a printed notice and reporting of the Translation.
Considering that it was proven in the Proceedings, that the work under the title Documens historiques et reflexions sur le Gouvernement de la Hollande, par Louis Bonaparte, ex Roi de Hollande, and the work under the title Historical documents and reflexions on the government of Holland, by Louis Bonaparte, ex King of Holland, are two different editions of one and the same work of the same author, and published simultaneously in Paris and London.
Considering that the presenting of mentioned work for translation to the Lord Mayor of this City by the defendant on 16th May 1820, was later than the presenting to aforesaid Lord Mayor, which was done by the claimant and Civil Party on 22nd April 1820.
Considering that therefrom results, that the defendant
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Johannes Christoffel van Kesteren has infringed on the Copyright of the Translation of the aforementioned work, which the claimant and Civil Party, in the aforesaid manner, has obtained, and of which infringement according to the term of law should be taken to be piracy.
The aforesaid Court, rendering judgment in the first instance.
Orders the seizure of all unsold pirated copies available in this country, for the benefit of the claimant and Civil Party.
Orders the defendant Johannes Christoffel van Kesteren to pay the value of three hundred copies of the aforesaid work, calculated at nine guilders per copy, and therefore amounting to two thousand seven hundred guilders, being the price set for the publication of the Original Low German translation by the claimant and Civil Party.
Furthermore fines this defendant two hundred guilders, for the benefit of the common poor of the city of residence of this here defendant, and orders him to pay the costs of the Proceedings for the purposes of the State, enforceable by imprisonment, calculated at one guilder fifty eight cents.
As well as those costs that have been caused by this here Civil Party."
Having heard the report of Lord Schonck, Justice in this Court.
Having heard the appellant in the means of his Defence and his pleadings, to this effect: "That the Judgment of the High Court of Justice will reverse the Judgment of the Court of first Instance sitting in Amsterdam, rendering judgment in cases of Correctional Police, of the date 16 August 1820, which is appealed; Furthermore, that with the amendment of the same judgment, as yet will be cancelled the Instruction, the Citation and all that followed thereafter; and that the appellant will be acquitted. Furthermore, with regard to the Civil Party and co-defendant, that the Judgment will deny the Claim and Statement delivered in the first instance against the appellant; and finally that the Civil Party and co-defendant will be ordered to pay the costs of both Instances."
Having heard the Civil Party and co-defendant in their
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pleadings, to this effect: "That the appeal will be nullified in this, and the appellant will, in the Judgment of this Court, be declared to not be burdened with the costs of the contested Judgment of the Correctional Court of Amsterdam of 16th August 1820 (at least as concerns the Sentencing in favour of the defendants)."
Having heard the Advocate General De Greve, on behalf of the Procurator General, on the Facts and his Advisory Opinion, to the effect: "That in the Judgment of this High Court of Justice (Chamber of Appeals in cases of Correctional Police), the Court, rendering judgement on the appeal, will nullify the Judgment, for which has been appealed, and will acquit the Appellant of the claim brought against him; and will also deny the Civil Party its Claim and Statement, ordering the claimant and Civil Party, Samuel de la Chaux, to pay the costs of both Instances for the purposes of the appellant as well as the State."
All the formalities set out in law having been observed.
Considering that the claimant, co-defendant and Civil Party, sustains that he, after having presented to the Mayor of his residence on 22nd April, of this Year 1820, a tome published in Paris, carrying the title: Documens historiques et reflexions sur le Gouvernement de la Hollande, par Louis Bonaparte, ex Roi de la Hollande, and furthermore having given notice three times in the State and Amsterdam Newspapers of the translation of that work into Low German as to be published by this here co-defendant, the accused, here appellant, therefore would not have had the right to print and sell within this State a Low German translation of the same work, after the English edition, as was done by the Appellant.
Considering that the co-defendant seeks to build his Allegation, and furthermore his Statement of defence delivered against the appellant's Claim, on a Decree of 24th January 1814, given by the Sovereign of the then existing United Netherlands, and entered in the Bulletin of Acts, Orders and Decrees.
Considering that in a further, and according to the
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Provision of the Constitution of this Kingdom, sanctioned Act of 25th January 1817, in the preamble thereof is clearly expressed that the same Act should serve to lay down the rights in respect of the printing and publishing of Literary Works and Works of Art in this Kingdom on an equal footing.
Considering additionally that such orders of that Decree, as were found suitable for the whole Kingdom in these matters, are set out and entered in the Act; while many other provisions, particularly those which could be considered applicable to the present case, have been changed entirely differently in the Act than in the said Decree.
Considering that therefore, in this, cannot be applied by the Court the said Decree, but only the Act of 25 January 1817.
Considering that the defendant has not proven to have complied with the requirements, which are set out in Art. 6 of that Act, and that he has thus failed to reserve himself such a right, as is granted to the publishers of Literary Works and Works of Art under Art. 2 and 4 of said Act.
The Court, rendering judgment on the appeal.
Nullifies the appeal and the Judgment, which has been appealed here.
And rendering judgement anew.
Given Art. 212 and 191 of the Code of Criminal Procedure.
Nullifies the Instruction and Citation, with all that followed thereafter, and acquits the appellant of the accusation brought against him.
Also denies the Civil Party and co-defendant their Claim and Statement delivered in the First Instance - and orders them to pay the costs of both Instances, for the purposes of the appellant as well as the State.
Thus done and given by the High Court of Justice in The Hague, Chamber of Appeal
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in matters of Correctional Police, and pronounced in a Public hearing on twenty-fifth October 1800 twenty, present Lords and Masters of Law, Donker Curtius, president, Schonck, rapporteur, Esquire Van AlderWerelt, Vromans, Swellengrebel, and Esquire Beelaerts van Blokland, who have signed these besides the Judge's Clerk.
(B. Donker Curtius) (J. Schonck) (J.C. van Alderwerelt)
(P. Vromans) (J.H. Swellengrebel)
(F. Beelaerts van Blokland) (M.G. Brondgeest)
Translation by: Miluska Kooij